ConCourt agrees on Marikana miners' legal aid

2015-09-23 07:05
Grieving families of the Marikana massacre victims. (Felix Dlangamandla, Netwerk24)

Grieving families of the Marikana massacre victims. (Felix Dlangamandla, Netwerk24)

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Johannesburg - The Constitutional Court has dismissed a bid by Legal Aid SA to appeal a High Court judgment that it provide legal aid to miners arrested and injured during the strike at Marikana.

The Socio-Economic Rights Institute (SERI) said in a statement on Tuesday that a judgment in the High Court in Pretoria handed down in 2013 allowed the miners to take part in the inquiry by requiring that their legal representatives be funded at legal aid rates.

''By the time the case had reached the Constitutional Court the [Marikana] commission had completed its work, Legal Aid SA had paid for the miners’ representation and had agreed not to ask for the money back if its appeal was successful,'' it said. 

''The legal framework governing funding for participants at commissions of inquiry had also been amended – twice – since the High Court judgment. SERI submitted that, in these circumstances, Legal Aid SA’s appeal would have no practical effect, and should be dismissed on that ground alone. The Constitutional Court agreed.''

SERI attorney Bhavna Ramji, who acted for the Association of Mineworkers and Construction Union and the families of the deceased miners said: “The effect of the Constitutional Court’s decision is to leave the High Court judgment unchallenged.

"The High Court decision was a beacon of fairness in the midst of the highly compromised proceedings of the commission – where the multiple state departments spent millions on extensive legal teams paid to justify the state’s actions at Marikana, while the miners were left with next to no resources to make out their case. The High Court judgment provided at least some corrective to this deep injustice.”

Lack of funding

Legal Aid had said it did not have the money to fund the injured and arrested and felt their interests would be protected by their unions.

The miners secured private funding for a short period from the Raath foundation but then could not get more private funding.

The High Court had found that there was no legal obligation on President Jacob Zuma or the Minister of Justice and Constitutional Development, but that Legal Aid had irrationally and unfairly discriminated between the two groups. Before the issue went to the Supreme Court of Appeal, Legal Aid agreed to fund the miners, and the SCA found that no order would have any effect or change the situation of the miners and that the case was moot.

Legal Aid applied for leave to appeal to the Constitutional Court, mostly to get clarity on who is entitled to funding at commissions of inquiry, given their budget. The Constitutional Court judges said the Pretoria judgment was very clear that that ruling only applied to the Marikana commission.

The extent to which that judgment could bind Legal Aid in future commissions or tribunals, is ''very narrow'' and ''so rare as to be negligible''.

Attorney Andries Nkome for the injured and arrested miners said he was delighted by the judgment.

''The matter is moot. In future if the president wants to set up an inquiry he must make sure there is adequate funding for parties as long as they are covered by the terms of reference.''

Zuma may have to do his sums soon as National Commissioner of Police Riah Phiyega is next up for an inquiry into her fitness to hold office, as recommended by retired judge Ian Farlam, who chaired the commission into the Marikana shootings. 

Read more on:    johannesburg  |  marikana inquiry

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